Responsible and sometimes critical comment on topical legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
Pro Aequitate Dicere

Saturday, 31 August 2013

The House of Commons debate on Syria may be seen via the Parliament website. The debate was notable in that the House of Commons voted against a government motion (HERE) which contained the possibility of a strong humanitarian response from the
international community including, if necessary, military action that is legal, proportionate and focused on saving lives
by preventing and deterring further use of Syria’s chemical weapons. The debate concluded with this exchange:

Edward Miliband:
On a point of order, Mr Speaker. There having been no motion passed by
this House tonight, will the Prime Minister confirm to the House that,
given the will of the House that has been expressed tonight, he will not
use the royal prerogative to order the UK to be part of military action
before there has been another vote in the House of Commons?Mr Speaker:
That is of course not a matter for the Chair, but the Prime Minister
has heard the right hon. Gentleman’s point of order, and he is welcome
to respond.The Prime Minister:
Further to that point of order, Mr Speaker. I can give that assurance.
Let me say that the House has not voted for either motion tonight. I
strongly believe in the need for a tough response to the use of chemical
weapons, but I also believe in respecting the will of this House of
Commons. It is very clear tonight that, while the House has not passed a
motion, the
British Parliament, reflecting the views of the British people, does
not want to see British military action. I get that, and the Government
will act accordingly.Mr Speaker:
I am grateful to the Prime Minister for that response.

Saturday, 24 August 2013

The Solicitor General (Oliver Heald) brought proceedings in the High Court to have a mother, Jennifer Marie Jones, committed to prison for contempt of court. The President of the Family Division (Munby LJ) dismissed the application saying ' 'The Solicitor General has failed to prove his case. The application is dismissed.' Read the judgment.

The Law Officers have standing (locus) to bring proceedings even where the alleged contempt is civil and relates to an order obtained by a private individual (para 14 of the judgment).

Jones would have been unrepresented but for solicitors and a barrister (Christopher Hames) acting for her pro bono. On this, Munby LJ said (42 and 43):

On 26th March 2013, a low key written ministerial statement
appeared before the House of Commons from the Justice Secretary, Chris
Grayling, declaring that he had asked staff to ‘explore proposals for
the reform of the resourcing and administration of our courts and
tribunals.’ Lodged between announcements that student loans were to be
sold off and the reprivatisation of the East Coast mainline, it wasn’t
until two months later when The Times splashed that one of the proposals
was the full privatisation of Her Majesty’s Courts and Tribunal Service
(HMCTS) that it attracted any attention.

Thursday, 22 August 2013

This morning, the High Court heard an application on behalf of David Miranda for an interim injunction. The case was before Lord Justice Beatson and Mr Justice Kenneth Parker. The Letter before Action (LBA) - published by The Guardian - gave an indication as to the nature of the injunction being sought.

The LBA asked that the Secretary of State and the Commissioner of Police of the Metropolis undertake that there will be no inspection, copying, disclosure, transfer, distribution or interference, in any way, with our client's data which was seized pursuant to Schedule 7, pending determination of our client's claim.

Tuesday, 20 August 2013

Updated post - with more information about the legal action being taken by Mr Miranda

Matrix Chambers have announced that they have been instructed to act for David Miranda in a legal action - Matrix Chambers news. The brief announcement states:

Matthew Ryder QC and Edward Craven have been instructed by Kate Goold and Gwendolen Morgan of Bindmans
to act for David Miranda in relation to his recent detention under
Schedule 7 of the Terrorism Act 2000. David Miranda was held at London’s
Heathrow airport for nine hours on Sunday morning while passing
through Heathrow on a stopover. David Miranda is the partner of Glenn
Greenwald, the Guardian journalist who interviewed Edward Snowdon, the
former US spy agency contractor who has been granted asylum by Russia.

David Miranda's detention (Previous Post) for 9 hours under Schedule 7 of the Terrorism Act 2000 prompted a huge outcry over 'gross misuse' of terror laws - The Guardian 19th August. This post takes a look at the Examining Officers Code of Practice and also some amendments to the law which are already under consideration by Parliament.

So far, there appears to have been no official statement from the authorities about the circumstances leading to Miranda's detention though The Guardian notes that:

The Metropolitan police said Miranda had been lawfully detained under
the Terrorism Act and later released. "Holding and properly using
intelligence gained from such stops is a key part of fighting crime,
pursuing offenders and protecting the public," it said in a statement.

Jack of Kent has set out a strong argument that the detention may have been unlawful. At this stage, it is not actually possible to say in the absence of knowledge about the reasons behind the decision to detain Miranda and the actual interview to which he was subjected.

Saturday, 17 August 2013

On 16th August, careless driving (Road Traffic Act 1988 s.3) became an offence for which a fixed penalty notice can be issued - Government announcement. The fixed penalty for careless driving is now £100 with 3 points on
the driver’s licence. The most serious examples will continue to go
through court, where offenders may face higher penalties. The police will also be able to offer educational training as an alternative to endorsement.

Section 3 states:

Careless, and inconsiderate, driving: If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he is guilty of an offence.

39. It is ironic that the Wars of the Roses appear to be returning
whence they started, the Temple. Legend has it that John Beaufort and Richard
Plantagenet picked the symbolic red and white roses in Inner and Middle Temple
gardens (c.f. Henry VI,Part 1, Act 2).

40. I would, however, urge the parties to avoid embarking on the (legal)
Wars of the Roses Part 2. In my view, it would be unseemly, undignified and
unedifying to have a legal tussle over these royal remains. This would not be
appropriate, or in the country’s interests. The discovery of Richard III’s
remains engages interests beyond those of the immediate parties, and touches
on Sovereign, State and Church.

41. For these reasons, I would strongly recommend that parties immediately
consider referring the fundamental question - as to where and how Richard III
is reburied -to an independent advisory panel made up of suitable experts and
Privy Councillors, who can consult and receive representations from all
interested parties and make suitable recommendations with reasonable speed.

Magistrates have been in the news with the Ministry of Justice looking at Reforming the role of Magistrates (Youtube). The Law Society Gazette (14th August) Government to propose new custodial powers for Magistrates states that the government is talking with Magistrates about why some offenders committed to Crown Court for sentence receive a sentence not exceeding 6 months imprisonment (i.e. within the powers of the Magistrates' Court). The Gazette article also mentions an idea of allowing victims to appeal to the Magistrates' Court if they feel that an offender should have been prosecuted rather than cautioned. A formal consultation about the future role of Magistrates is expected later this year. A further article on this is at Solicitors Journal. and see speech by Damian Green MP (MInister of State for Policing and Criminal Justice) to Magistrates 14th August.

Will magistrates' courts be given a greater maximum sentence? Green said that the idea has an attractive logic but there might be added pressure on the prison population. Government is keeping this matter under review and will retain the legislation which is in place to implement it.

On Monday 12th August, the Law Society Gazette published Doubts over MoJ's savings target. This indicates that cuts will have to deepen by £700m annually over the next two consecutive years, for the MoJ to meet its spending objective. This follows speculation that the MoJ will announce 80 further court closures in order to meet spending targets. The closures are expected to be mainly magistrates' courts and would add to the 142 courts that have been culled since 2010.

Wednesday, 14 August 2013

Professor Andrew Ashworth is the Vinerian Professor of English Law at Oxford University. In a pamphlet published by the Howard League for Penal Reform, Professor Ashworth expresses the view that imprisonment should be reserved for those who commit crimes of a violent, sexual or threatening nature - BBC 14th August and Howard League Press Release 14th August. The press release notes:

Professor Andrew Ashworth, the Vinerian Professor of English Law at Oxford University, said:
“We should be reserving our most severe form of punishment for our
most serious types of offending. Should someone be sent to prison and
deprived of their liberty for an offence that involves no violence, no
threats and no sexual assault? Instead, the priority should be to deal
with such offences in the community, giving precedence to compensation
or reparation for the victim and, where the offence is sufficiently
serious, imposing a community sentence.”

Frances Crook, Chief Executive of the Howard League for Penal Reform, said:

Monday, 12 August 2013

The Daily Mail 12th August published an item concerning the Irish airline Ryanair - Ryanair pilots 'bullied into silence over safety...' I have no idea whether the allegations in the article are true, partially true or false. Given that any allegations concerning operational safety must be taken very seriously, Ryanair may well have to defend its position. Ryanair is based in the Republic of Ireland. The airline's website sets out the names of the Directors and, it should be noted, that the airline has an Air Safety Committee chaired by a Director who was formerly Chief Pilot of Aer Lingus. The airline's Chief Executive Officer is Michael O'Leary. Mr Leary is also a Director.

Regulation of Civil Aviation:

On an international scale, the International Civil Aviation Organisation (ICAO) was set up in 1944 to set down standards and recommended practices for civil aviation. ICAO is a specialised agency of the United Nations and promotes the safe and orderly development of
international civil aviation throughout the world. It sets standards and
regulations

Sunday, 11 August 2013

R (Ignaoua) v Home Secretary is a case raising an interesting point about the impact of the Justice and Security Act 2013 section 15 on judicial review in the High Court - Judgment of Cranston J.

Section 15 applies to non-European Economic Area (EEA) nationals who the Home Secretary seeks to exclude from the UK on grounds relating to the public good. If the Home Secretary does not wish information on which the exclusion decision is based to be made public then a certificate may be issued. Once this is issued, the affected person may apply to the Special Immigrations Appeal Commission (SIAC) to set aside the direction for exclusion. In deciding such cases, SIAC must apply the principles which would be applied in judicial review proceedings. If the Commission decides that the direction should be set aside, it may make any such order, or give any such relief, as may be made or given in judicial review proceedings. A number of High Court judges sit in the Commission.

In July 2012, the Law Commission published a Scoping Paper
to find out how the criminal defences of insanity and automatism
operate in practice. The responses to that paper have informed the
Discussion Paper which is now published. The Discussion Paper
contributes to the continuing debate on whether the law has the right
test to distinguish between those who should be held criminally
responsible for what they have done, and those who should not.. More information

Thursday, 8 August 2013

On Monday 5th August, Neil Wilson (age 41) was sentenced by the Crown Court sitting at Snaresbrook. It is reported that Wilson admitted two counts of making extreme pornographic images and one count of sexual activity with a child - Sky News 7th August 2013 When sentencing Wilson to 8 months imprisonment suspended, it seems that the judge (HHJ Peters QC) referred to the young female victim (age 13) as 'predatory.' Unfortunately, this is a case where sentencing remarks are not available and so only the media reports are available. The barrister representing the Crown Prosecution Service (Robert Colover) is reported to have said to the court - "The girl is predatory in all her actions and she is sexually experienced." On what basis (if any) the judge chose to use the same word 'predatory' is unclear. Sentencing has to be based on facts either admitted by the defendant or proved to the tribunal of fact (i.e. the jury). Sometimes, in guilty plea cases, there is an agreed factual basis for the plea and sentencing may then be based on that agreement - see Attorney General's Office - 'The acceptance of pleas and the prosecutor's role in the sentencing process.'

Friday, 2 August 2013

May a Police Force apply for a person to be committed to prison for contempt of court for breach of a Forced Marriage Protection Order (FMPO) when the police were not the applicants who obtained the order? The answer is NO according to Holman J in a case revealing (or illustrating) a serious weakness in the scheme of the forced marriage protection provisions
inserted as Part 4A into the Family Law Act 1996 by the Forced Marriage
(Civil Protection) Act 2007 and which came into force in November 2008. Bedfordshire Police v RU and FHS [2013] EWHC 2350 (Fam).

Holman J's judgment ended by saying that the facts and circumstances
of this case reveal or illustrate a grave weakness in the existing
forced marriage protection order machinery as enacted in Part 4A.
Forced marriages are a scourge, which
degrade the victim and can create untold human misery. It is vital

Thursday, 1 August 2013

On 31st July the Court of Appeal (Civil Division) gave its judgment in three cases all concerning the offence of Assisting Suicide - Suicide Act 1961 s.2 as amended by the Coroners and Justice Act 2009. The three cases raised various points which were addressed by the court in a single judgment. The court comprised Lord Judge CJ; Lord Dyson MR and Elias LJ. This was Lord Judge's final judgment in his capacity as Lord Chief Justice. R (Nicklinson and Lamb) v Ministry of Justice [2013] EWCA Civ 96.

In short, the decision was that (1) a defence of necessity cannot be fashioned at common law as a means of protecting a person who assists in the suicide of another; (2) the legal prohibition against assisting was not a disproportionate interference with Article 8 rights but (3) the Director of Public Prosecution's policy relating to prosecutions under section 2 required some amendment to provide greater clarity as to when certain individuals might be prosecuted. That would enable individuals to have greater foreseeability of the consequences of assisting. Point 3 will be of particular importance to the medical profession. Lord Judge dissented on point 3 - ' ...we cannot keep ordering and re-ordering the DPP to issue fresh guidelines to cover each new situation... [para 179]

About Me

Peter Hargreaves LL.B (Hons). Live in Greater Manchester but spend as much time as possible in N. Yorkshire. Politically, closest to the Lib Dems than any other! Retired after 40 years in civil aviation. Life long interest in law about which there is much misinformation and misunderstanding. My blog seeks to look at topical items and their complexities and tries to explain things in a straightforward way. Obiter means "by the way" and my posts are "by the way." I hope that the posts are responsible, balanced and informative but it is for you, the reader, to make up your own mind. I do not seek to persuade you. At all times I will try to speak for fairness - Pro Aequitate Dicere.